Opinion
CA 02-01735
February 7, 2003.
Appeal from that part of an order of Supreme Court, Orleans County (Punch, J.), entered January 31, 2002, that denied defendant's motion for summary judgment dismissing the complaint.
LAW OFFICE OF RANDOLPH P. ZICKL, BATAVIA (RANDOLPH P. ZICKL OF COUNSEL), FOR DEFENDANT-APPELLANT.
HAMSHER VALENTINE, BUFFALO (RICHARD P. VALENTINE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum:
Plaintiff commenced this action alleging that defendant made a slanderous statement concerning plaintiff to one of plaintiff's patients and those accompanying her to a medical appointment. According to plaintiff, defendant was displeased that his patient chose to undergo a surgical procedure with plaintiff and stated to her that, "[a]s far as [plaintiff] goes, I don't think he knows what he is talking about either." Defendant denied making the statement, asserting that he told his patient that he was as competent as plaintiff to diagnose certain maladies of the throat. Defendant moved for summary judgment dismissing the complaint for failure to state a cause of action for defamation, and plaintiff cross-moved for summary judgment. Supreme Court denied the motion and cross motion, finding that there is an issue of fact concerning the precise content of defendant's statement. We conclude that the court erred in denying defendant's motion. A person's statements of opinion are constitutionally protected (see Steinhilber v. Alphonse, 68 N.Y.2d 283, 286), and the issue "[w]hether the contested statements are reasonably susceptible of a defamatory connotation is in the first instance a legal determination for the court" (Weiner v. Doubleday Co., 74 N.Y.2d 586, 593, cert denied 495 U.S. 930). Here, we conclude that the court erred in failing to determine in the first instance that plaintiff's version of the statement allegedly made by defendant was one of opinion rather than fact (see Millus v. Newsday, Inc., 89 N.Y.2d 840, 842, cert denied 520 U.S. 1144). In determining whether a communication is an actionable factual statement or a nonactionable opinion, a court must assess "(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal * * * readers or listeners that what is being read or heard is likely to be opinion, not fact" (Gross v. New York Times Co., 82 N.Y.2d 146, 153 [internal quotation marks omitted]). Mere allegations, rather than objective statements of fact, are not actionable (see Vengroff v. Coyle, 231 A.D.2d 624, 625-626). Here, the statement ascribed to defendant by plaintiff began with "I don't think," which signals that a statement of opinion is to follow. Moreover, the alleged statement that "I don't think [plaintiff] knows what he is talking about either" is "vague, ambiguous, indefinite and incapable of being objectively characterized as true or false" (Park v. Capital Cities Communications, 181 A.D.2d 192, 196, appeal dismissed 80 N.Y.2d 1022, lv dismissed in part and denied in part 81 N.Y.2d 879; see Hollander v. Cayton, 145 A.D.2d 605). A reasonable person hearing that statement would conclude that the statement was a "biased opinion, not objective fact" (Vengroff, 231 A.D.2d at 626). Thus, even assuming, arguendo, that defendant made the statement ascribed to him by plaintiff, we conclude that the statement is nonactionable opinion and thus that defendant is entitled to summary judgment dismissing the complaint.